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Zingo Telecom Terms of Service
These Terms of Service constitute the agreement ("Agreement") between Zingo Telecom Inc. ("we," "us" or "Zingo Telecom" and the user ("you," "user" or "Customer") of Zingo Telecom's Basic, Residential services or Small Business services and any related products or services ("Service"). This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device, ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. 1. SERVICE 1.1 Term Service is offered on a monthly basis for a term which begins on the date that Zingo Telecom activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Zingo Telecom written notice of non-renewal at least seven (7) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement. 1.2.1 Basic Plan, Premium Plan, Residential Plan Use of Service and Device If you have subscribed to Zingo Telecom's Basic Plan, Premium Plan, Residential Plan services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns. This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Zingo Telecom in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Zingo Telecom's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes. Zingo Telecom reserves the right to immediately terminate or modify the Service, if Zingo Telecom determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use. 1.2.2 Small Business Use of Service and Device - Prohibition on Resale If you have subscribed to Zingo Telecom's Small Business services, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Zingo Telecom in advance. You agree that the Zingo Telecom Small Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. Zingo Telecom reserves the right to immediately terminate or modify the Service, if Zingo Telecom determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities. 1.3.1 Prohibited Uses You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Zingo Telecom's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Zingo Telecom reserves the right to terminate your service immediately and without advance notice if Zingo Telecom, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at Zingo Telecom's discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Zingo Telecom against any and all liability for any such use. If Zingo Telecom, in its sole discretion believes that you have violated the above restrictions, Zingo Telecom may forward the objectionable material, as well as your communications with Zingo Telecom and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding. 1.3.2 Use of Service and Device by Customers Outside the United States While we encourage use of the Service within the United States to other countries, Zingo Telecom does not presently offer or support the Service to customers located in other countries except Canada. If you remove the Device to a country other than the United States or Canada and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Zingo Telecom against any and all liability for any such use. Should the removal from the United States or Canada of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless Zingo Telecom against any and all liability for such violation. 1.4 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Zingo Telecom You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which is not provided by Zingo Telecom) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or Zingo Telecom terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers. Should Zingo Telecom suspend or terminate your Service, the Service will not function until such time as Zingo Telecom restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement). 1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on Zingo Telecom's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Zingo Telecom are and shall remain the exclusive property of Zingo Telecom and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that Zingo Telecom will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by Zingo Telecom, which Zingo Telecom reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Zingo Telecom against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software. 1.6 Tampering with the Device or Service You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Zingo Telecom in each instance which Zingo Telecom may deny in its sole discretion. Zingo Telecom reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so. 1.7 Theft of Service You agree to notify Zingo Telecom immediately, in writing or by calling the Zingo Telecom customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as Zingo Telecom receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service. 1.8 Return of Device upon Cancellation or Termination of Service (Does not include Business Solution Customers who purchased Device(s)) The Device must be returned to Zingo Telecom within thirty (30) days of service cancellation by customer or termination of service as outlined in section 4 of this Agreement. Zingo Telecom’s customer care department shall provide the customer with a valid return authorization number for Device. The Customer will be charged a NO RETURN DEVICE fee of $99.95 for each Device not returned within thirty days to Zingo Telecom after the service cancellation by customer or termination as outlined in section 4 of this Agreement. Customer is responsible for the cost and risk of return shipping of equipment. 1.9 Number Transfer on Service Termination Upon termination of the Service, Zingo Telecom may, at its sole discretion, release a telephone number that was ported in from a previous service provider to Zingo Telecom by you and used in connection with your Service provisioned by Zingo Telecom to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your Zingo Telecom account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account. 1.10 Service Distinctions You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the enhanced Service offering provided by Zingo Telecom. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies. 1.11 Ownership and Risk of Loss You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.8 and has been received by Zingo Telecom. 1.12 No 0+ Calling or 1010XXX; May Not Support some x11 Calling Zingo Telecom's Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling) and 1010xxx in all service areas. Zingo Telecom's Service does not currently support 311 & 511. 1.13 Incompatibility With Other Services. (1) Home Security Systems. The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service. (2) Certain Broadband, Cable Modem, and Other Services. You acknowledge that the Service presently is not compatible with AOL cable broadband service, certain versions of TiVO, and there may be other services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service. 2. EMERGENCY SERVICES- 911 DIALING 2.1 911 Dialing. Zingo Telecom 911 Dialing is different than traditional 911 service. Most of our customers have access to either basic 911 or Enhanced 911 (E911) service. With E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to you location, and emergency operators have access to the information they need to send help and call you back if necessary. Customers in locations where the emergency center is not equipped to receive your telephone number and address have basic 911. With basic 911, the local emergency operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. As additional local emergency centers become capable of receiving our customers’ information, Zingo Telecom will automatically upgrade customers with basic 911 to E911 service. Zingo Telecom will not give you notice of the upgrade. Certain customers do not have access to either basic 911 or E911. If you don’t have access to basic 911 or E911 your 911 call will be sent to a national emergency call center. A trained agent at the emergency call center will ask for the name, telephone number and location of the customer calling 911, and then contact the local emergency center for such customer in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating a customer’s address, the customer is identified with an international location, or the customer is located in an area that is not covered by the landline 911 network. Emergency personnel do not receive your phone numbers or physical location when your 911 call is routed to a national emergency call center. You authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers. 2.2 Notify All Users. You should inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differenced in and limitations of Zingo Telecom 911 dialing as compared with basic 911 or E911. 2.3 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Zingo Telecom the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register you new location any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the “911” registration link on your Zingo Telecom web account features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service. 2.4 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line. 2.5 Service Outages. Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning. Service Outage Due to the Termination of Your Zingo Telecom Account. Service outages due to termination of your account will prevent all Service, including 911 Dialing, from functioning. Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us in this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that Zingo Telecom is not responsible for the blocking or ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event that you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement. Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. 2.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number. 2.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 Dialing over traditional public telephone networks. 2.8 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using out 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on the third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Zingo Telecom nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Zingo Telecom, its officers, directors, employees, affiliated and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency personnel. 2.9 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing 911 or E911 services or terminating the Service. 3. CHANGES TO THIS AGREEMENT Zingo Telecom may change the terms and conditions of this Agreement from time to time. Such changes will become binding on Customer, on the date posted to the Zingo Telecom website and no further notice by Zingo Telecom is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including without limitation any written terms enclosed within the packaging of the Device. 4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION 4.1 Billing You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by Zingo Telecom) when the Service is activated. Zingo Telecom reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Zingo Telecom at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Zingo Telecom decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Zingo Telecom reserves the right to bill at more frequent intervals if the amount due at any time exceeds $40. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on Zingo Telecom's website. 4.2 Billing Disputes You must notify Zingo Telecom in writing within 7 days after receiving your credit card statement if you dispute any Zingo Telecom charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Customer Care Billing Department Zingo Telecom, Inc. 42 South Pompano Parkway PMB #116 Pompano Beach, FL 33069 USA OR billing@zingotel.com 4.2.1 Credit Card Chargebacks Notification to Zingo Telecom, Inc. of credit card chargeback action for any reason on the listed credit card of any Zingo Telecom, Inc. customer will result in immediate suspension of service for that customer for any and all accounts, pending settlement of the dispute. Further, such customer accounts will be billed a Chargeback Fee of $30 for each instance of chargeback. Without reservation, Zingo Telecom, Inc. reserves the right to re-bill any unrecoverable amounts due to chargeback action. In addition, accounts which have been cancelled or terminated which are subject to chargeback action will be re-billed any such amounts as necessary along with any Chargeback Fee/s, and will be submitted to collections for legal action. 4.3 Payment Zingo Telecom accepts payments only by credit card as set forth in Section 4.1. Your initial use of the Service authorizes Zingo Telecom to charge the credit card account number on file with Zingo Telecom, including any changed information given Zingo Telecom if the card expires or is replaced, or if you substitute a different card, for Zingo Telecom charges as set forth in Section 4.1. This authorization will remain valid until 30 days after Zingo Telecom receives your written notice terminating Zingo Telecom's authority to charge your credit card, whereupon Zingo Telecom will charge you the disconnect fee and any other outstanding charges and terminate the Service. Zingo Telecom may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Zingo Telecom is declined or reversed, your credit card expires and you have not provided Zingo Telecom with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Zingo Telecom for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Zingo Telecom in collecting such amounts, such as (but not limited to) collection costs and attorney's fees. 4.4 Termination/Discontinuance of Service Zingo Telecom reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If Zingo Telecom discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Zingo Telecom or of a third party provider to which Zingo Telecom is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.6, all of which immediately become due and payable. 4.5 Taxes You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide Zingo Telecom with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date Zingo Telecom receives such certificate. 4.6 Disconnect Fee Customer will be charged a disconnect fee of $39.99 per telephone service line upon disconnection of Service for any reason or for convenience by Customer within the first year following activation of service. The disconnect fee becomes due and payable immediately upon termination and will be billed directly to Customer's credit card. Customers may be waived of the Disconnect Fee who meet the eligibility requirements under 4.7, Money Back Guarantee. 4.7 Money Back Guarantee: Limitations and Conditions Zingo Telecom offers a 30-day Money Back Guarantee applicable only to User's first-ordered line per account, not to additional or secondary lines. Under terms of this Money Back Guarantee, Zingo Telecom refunds the activation fee and first month of service and waives the disconnect fee, provided the terms described below are satisfied. Federal excise taxes and any other applicable taxes cannot be refunded. Zingo Telecom reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice. In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the 30 days after the account activation; (ii) must return all Devices within 14 days after cancellation; and (iii) must not have exceeded 120 minutes of usage. User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribes, international usage (including the charges described in Section 4.9), payphone calls to Zingo Telecom toll free numbers and directory assistance. THIS MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 120 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN. In addition to the requirements set forth, all returned Devices must be in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included. Equipment must be returned with a valid return authorization number obtained from Zingo Telecom customer care. User is responsible for the cost and risk of return shipping of equipment. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS. To obtain a return authorization number, you must contact billing@zingotel.com. User will become liable for all fees under Section 1.8 and 4.6 should they not return all Devices to Zingo Telecom upon cancellation. 4.8 Payphone Charges If you make use of Zingo Telecom's Toll Free Plus feature any toll free feature that may be offered by Zingo Telecom in the future, you acknowledge and agree that Zingo Telecom is entitled to recover from you any charges imposed on Zingo Telecom by payphone owners or operators, either directly or indirectly through Zingo Telecom's suppliers in connection with toll free calls made to your number, or any charges imposed on Zingo Telecom by its suppliers to recover such costs. Zingo Telecom may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as Zingo Telecom deems appropriate for the recovery of these costs. 4.9 Charges for Directory Calls Zingo Telecom will charge USD $0.85 cents for each call made to Zingo Telecom directory assistance. 5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION 5.1 Limitation of Liability Zingo Telecom shall not be liable for any delay or failure to provide the Service, including 911 dialing which is not currently available, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: 1) act or omission of an underlying carrier, service provider, vendor or other third party; 2) equipment, network or facility failure; 3) equipment, network or facility upgrade or modification; 4) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions; 5) equipment, network or facility shortage; 6) equipment or facility relocation; 7) service, equipment, network or facility failure caused by the loss of power to Customer; 8) outage of Customer's ISP or broadband service provider; 9) act or omission of Customer or any person using the Service or Device provided to Customer; or 10) any other cause that is beyond Zingo Telecom's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed, or degradation of voice quality. Zingo Telecom's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Zingo Telecom's performance or nonperformance hereunder or (iii) any Zingo Telecom act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period. 5.2 Disclaimer of Damages IN NO EVENT SHALL ZINGO TELECOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT ZINGO TELECOM WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. 5.3 Indemnification Customer agrees to defend, indemnify, and hold harmless Zingo Telecom, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement. 5.4 No Warranties on Service ZINGO TELECOM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, ZINGO TELECOM DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER ZINGO TELECOM NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ZINGO TELECOM'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ZINGO TELECOM'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ZINGO TELECOM OR ZINGO TELECOM'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 5.5 No Warranties, or Limited Warranties, for Devices If Customer received the Device new from Zingo Telecom and the Device included a limited warranty at the time of receipt, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer's Device did not include a limited warranty from Zingo Telecom at the time of receipt, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect. 5.6 No Third Party Beneficiaries No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights. 5.7 Content You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Zingo Telecom reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Zingo Telecom determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with Zingo Telecom's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. Zingo Telecom's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Zingo Telecom against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you. 6. GOVERNING LAW / RESOLUTION OF DISPUTES 6.1 Mandatory Arbitration Any dispute or claim between Customer and Zingo Telecom arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in New York, New York and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL. 6.2 Governing Law The Agreement and the relationship between you and Zingo Telecom shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Zingo Telecom agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Florida and waive any objection as to venue or inconvenient forum. The failure of Zingo Telecom to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 6.3 Entire Agreement This Agreement and the rates for Services found on Zingo Telecom's website constitute the entire agreement between you and Zingo Telecom and govern your use of the Service, superseding any prior agreements between you and Zingo Telecom and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Zingo Telecom unless and until posted in accordance with Section 3 hereof. 6.4 Severability If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. 7. PRIVACY Zingo Telecom Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Zingo Telecom is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our "Privacy" Policy applicable to you at www.zingotel.com for additional information.
Last Updated
: March 23, 2007
